INDRAJIT BAHADUR SINGH Vs. THE STATE OF BIHAR AND SRI CHANDRA KANT PRITAM LAL MEHTA

JUDGEMENT

(1.) Petitioner Indrajit Bahadur Singh was at the relevant time an officer of Dena Bank Ltd, Patna while Shri Chandra Kant Pritam Lal Mehta, opposite party no. 2 was the Branch Manager thereof. On 18.6.1971 opposite party no. 2 sent a written report to the officer -incharge Kotwall Police Station alleging that the petitioner had participated in the defalcation of two sums of Rs. 8000/ - and Rs. 7100/ - respectively which were withdrawn illegally from the Bank. In view of the contentions raised, it is not necessary to set out the allegations in any further detail. The police after investigation submitted what is to be popularly called a final report holding the allegations not proved. On behalf of opposite party no. 2 a protest petition was filed. On behalf of the petitioner a counter petition was filed praying that the protest petition be rejected. By his order dated 22.11.1972 the Sub -divisional Magistrate, Patna saying that he would not accept the final report directed that the informant, meaning opposite party no. 2 should appear before the Court for the examination on solemn affirmation on 25.11.1972. On 25.11.1972 consequent upon that order the opposite party no. 2 (hereinafter called 'the complainant') was examined on solemn affirmation and the learned Magistrate after calling for the case diary, supervision note by his order dated 17.3.1973 directed Shri Lala Agam Prasad Magistrate, First Class to hold judicial inquiry into the complaint. The inquiry report of the Magistrate Shri Lala Agam Prasad was put up before the learned Sub -divisional Magistrate on 17.7.1974, who directed that the case be put up before the Chief Judicial Magistrate on 31.7.1974. On 31.7.1974 the complainant was absent and the Chief Judicial Magistrate, Patna before whom the case had come up passed the following order: - -

(2.) Mr. Gorakh Nath Singh next contended that even assuming that the Magistrate had jurisdiction, this was not a fit case in which the jurisdiction to revive the complaint dismissed earlier should have been exercised. In my opinion, this contention is equally devoid of any substance. I have already set out the order dismissing the complaint and the order reviving the complaint. In the order dated 31 -7 -1974 dismissing the complaint, the expression "hence the final report is accepted, the protest -cum -complaint petition is dismissed" occurs after the sentence "None responds on behalf of the complainant". In the context and because of the use of the expression "hence", it is crystal clear that the learned Magistrate dismissed the complaint because of the non -appearance of the complainant. Though the learned Magistrate has referred to the report of the inquiring officer and the opinion expressed by him, the learned Magistrate does not appear to have based his decision of dismissal of complaint on the result of the inquiry, he has based it only on the absence of the complainant. In this connection, we should remember that the learned Magistrate himself construed his order dated 31 -7 -1974 as an order dismissing the complaint for default. In the order dated 2 -8 -1974 he has stated. - -"In view of the ruling reported in : A.I.R. 1962 Patna, 316, the complaint petition should be revived as it was dismissed for default."

(3.) Now after the complainant has been examined on solemn affirmation and the report of an inquiry order under Sec. 202 of the Code of Criminal Procedure received, the learned Magistrate may not dismiss the complaint merely on the ground of absence of the complainant. He can dismiss the complaint only if after considering the statement on oath of the complainant and the result of the inquiry under Section, 202 he was of the opinion that there was no sufficient ground for proceeding under Sec. 203 Cr.P.C. The order of the learned 'Magistrate dated 31.7.1974 dismissing the complaint, therefore, is an order which was manifestly erroneous or foolish and, therefore, a fresh complaint on the same facts could be entertained or the complaint could be revived in accordance with law laid down by the Supreme Court in the case referred to above. As I have stated earlier in the petition filed by the complainant on 2.8.1974, he had alleged that he was unable to know that 31.7.74 was the date fixed in the case in spite of enquiries by his agents. In these circumstances, if the Magistrate recalled his order dismissing the complaint, it must be held that the learned Magistrate was satisfied that the complainant had sufficient cause for not being present in court when the case was called out on 31.7.1974.